See also Responding to agencies, and Disclosure Agreement.
Based predominantly on AGS Legal briefing 115.
When Agencies Refuse to Answer: What the Law Actually Says
A plain-language guide to accountability, FOI responses, and the legal consequences of dishonest conduct by public officers
Introduction
Most people who lodge a Freedom of Information request, or who write formally to a government agency expecting a substantive reply, do not receive one. What they receive instead is a formula. Searches were thorough. The matter has been considered. The request does not satisfy the requirements. The department is unable to assist.
These responses feel like answers. They are structured like answers. They are written on official letterhead and signed by officers with titles. But they do not answer the question asked.
This article explains what the law says about that pattern of conduct, what obligations public officers actually carry, and what practical steps a person can take to place an agency’s conduct on a record that matters.
The Duty of Public Officers
Public officers do not exercise power as a personal prerogative. They exercise it on behalf of the public and for the public good. That is not a political statement – it is the legal foundation of administrative power in Australia, stated by the High Court and confirmed repeatedly by appellate courts.
The rationale was expressed by the House of Lords in Three Rivers District Council v Bank of England and adopted in Australia: executive and administrative power may be exercised only for the public good and not for ulterior and improper purposes. A public officer who processes your request, issues a decision, or responds to your correspondence is not doing you a favour. They are discharging a duty. The law treats it as such.
That duty has real content. It includes the duty to search for documents actually within the scope of a request. It includes the duty to identify documents that are being withheld and state the basis for their withholding. It includes the duty to answer questions asked under statute. And it includes the duty not to make representations about the scope or thoroughness of a process that the officer knows to be incomplete.
Three Concepts You Need to Understand
Misfeasance in public office is the law’s most direct response to the abuse of public power. It is an intentional tort – the only tort recognised by Australian common law that operates exclusively in the public law sphere. It requires proof of bad faith: either targeted malice (acting with the specific intention to cause harm) or reckless indifference (knowing that the conduct is unlawful, or being wilfully blind to that fact, and proceeding regardless while knowing harm is the likely result).
The threshold is high and deliberately so. Courts have confirmed that misfeasance is not established by negligence, incompetence, or poor judgment alone. The officer must subjectively know, or be wilfully blind to the fact, that their conduct lacks lawful authority. Being wrong is not enough. Knowing you are wrong and proceeding anyway is the territory the tort is designed to address.
The significance of the threshold is not that it protects wrongdoers. It is that it places a specific and documentable standard on the conduct of public officers. Once an officer has been asked, on the record, whether their search extended to a specific category of documents, and has confirmed it was thorough without addressing the question, the inference available from that non-answer is qualitatively different from a mere failure to respond well. The record carries the weight of a question that was asked and not answered. That is not negligence. That is a choice.
Nonfeasance is the failure to perform a required duty at all – an act of omission rather than commission. Where misfeasance is doing the job wrongly, nonfeasance is not doing the job. In the FOI context, nonfeasance arises when an agency does not search the categories of records it is required to search, does not identify documents it is required to identify, and does not disclose that the search was incomplete. Confirming that searches were thorough while omitting to search the categories expressly sought is not an answer – it is the absence of one dressed in official language.
Malfeasance is the most serious category: taking wrongful or illegal action, such as deliberately destroying records, misrepresenting the scope of a search to conceal the existence of documents, or issuing a decision the officer knows to be contrary to law.
Understanding which category a response falls into matters because it determines what the record needs to show, what questions need to be asked, and what remedies are available.
The Four Patterns of Evasion
Responses from public agencies that fail to answer substantive questions consistently follow one of four structural patterns. Identifying which pattern is in play determines the correct response.
The first is deferral through procedure. The agency responds by citing process, timeframes, referrals, or internal policy rather than answering the question. The response looks cooperative but resolves nothing. It redirects rather than discloses. The correct response is to ask for the specific statutory basis for the procedural step being deployed. Procedure that has no statutory basis cannot lawfully be used to defer a valid request.
The second is compression into rhetoric. The agency uses language that asserts process without grounding it. Thorough searches were conducted. All relevant staff were consulted. The matter has been carefully considered. Each of these phrases substitutes assertion for evidence. They confirm a conclusion without establishing its basis. The correct response is to ask three specific questions: did the search extend to the specific categories of records sought; if records were found but not released, identify them and state the exemption; if no records were found because no action was taken or recorded, confirm that expressly.
The third is cross-institutional handoff. Responsibility is transferred between bodies – departments, offices, ministers, contractors. Each transfer creates a gap in accountability. The correct response is to identify the seam – the point at which the matter moved between institutions – and ask who holds the record of the decision made at that point.
The fourth is silence. The agency does not respond to the specific question at all. It issues a decision, closes the matter, and moves on. This is the most significant pattern on the record, because silence from a public officer who has been asked a specific question on the record is not neutral. In legal proceedings, the principle from Jones v Dunkel (1959) establishes that where a party fails to give evidence about matters within their knowledge, an adverse inference that would otherwise be available becomes more readily drawn. An agency that refuses to confirm whether it searched specific categories of records, when asked directly three times, has provided a documentable basis for the inference that the search was not conducted.
The Omissions Problem
A common misunderstanding is that nonfeasance – doing nothing – is somehow less serious than active wrongdoing. The law is more nuanced. The AGS Legal Briefing on misfeasance in public office confirms that omissions can ground a misfeasance claim, but only where the omission involves a conscious and dishonest failure to act in knowledge of circumstances that give rise to a positive duty to take lawful action. An inadvertent failure is not enough. A conscious choice not to search, not to disclose, not to answer a specific question that has been placed on the record – that is a different matter.
The FOI Act does not merely invite agencies to search what is convenient. It requires them to identify documents within the scope of the request. When an agency confirms that all relevant staff were asked to search, but does not confirm whether those staff were asked to search the specific categories identified in the request, the gap between what was said and what was required is on the record. Closing that gap is the purpose of placing the three questions on the record in every exchange.
Personal Liability: An Important Point
A fundamental feature of misfeasance in public office is that it creates personal liability. The AGS briefing is explicit on this: the Commonwealth itself cannot be directly liable for misfeasance because the Commonwealth does not occupy a public office. It is the officer who decides, signs the decision, and confirms the search who carries the exposure.
This matters for two reasons. First, the officer signing a response they know to be incomplete cannot assume the agency will indemnify them. The Legal Services Directions 2017 provide that assistance to an officer will be approved where the officer acted reasonably and responsibly. An officer who confirms a thorough search while knowing it did not extend to the categories sought has not acted reasonably and responsibly in the relevant sense.
Second, the Commonwealth is required by paragraph 3 of the Legal Services Directions to report to the Office of Legal Services Coordination on significant issues arising in the provision of legal services. The OLSC’s Guidance Note No 7 confirms that a matter in which misfeasance in public office is in issue is a significant issue for the purposes of that reporting obligation. Raising the issue expressly, in writing, on the record, triggers a reporting obligation that travels up the chain independently of whether an underlying claim is ultimately pursued.
Damages
Where misfeasance is established, the damages available are broader than in negligence. Because it is an intentional tort, consequential loss is recoverable if it was either intended by the officer or was the natural or probable consequence of the conduct. Courts can take into account indignity, ongoing harm, damage to reputation, physical or psychological injury, and financial loss. Because the tort is founded on bad faith, exemplary damages – punitive damages going beyond compensation – are a real possibility.
What You Can Do
The record is everything. A single incomplete response may be administrative error. A pattern of responses that consistently deflect, compress attribution into rhetoric, and avoid confirming whether specific categories were searched, when each response was preceded by a direct and documented question, builds something different. It builds a record of choices.
The practical steps are straightforward. Ask, do not assert. Place three questions on the record in every exchange where a response is incomplete: did the search extend to the specific categories sought; if records were found but not released, identify them and state the basis; if no records exist because no action was taken or recorded, confirm that expressly. The third question is the most important. If the agency answers it, the answer is on the record. If the agency does not answer it, the silence is on the record. Either outcome advances your position.
Raise the issue of personal liability where the pattern is clear. Not aggressively – procedurally. A letter that notes the reporting obligation under the Legal Services Directions, and that asks whether the matter has been referred to the OLSC as a significant issue, is not a threat. It is a procedural question that an officer in good faith should be able to answer. The response to that question, or the absence of one, tells you something important about the conduct you are dealing with.
Be patient. Institutions conserve their own continuity by hoping the other party gives up. The record built through precise, patient, documented engagement does not diminish with time. It accumulates.
This article is general information only and does not constitute legal advice. Anyone considering a claim arising from the conduct of a public officer should obtain independent legal advice.
Veritas odit moras – truth is ill-served by delay.
Last Updated 5 months ago
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